Practice Note (No. 1)
In terms of Section 20 of the Crofters (Scotland) Act 1993 the Land Court may, on the application of a landlord and on being satisfied that he desires to resume the croft or part thereof for some reasonable purpose having relation to the good of the croft or of the estate or to the public interest authorise the resumption thereof. The Court will not authorise resumption retrospectively and accordingly practitioners should ensure that applications for resumption are lodged with the Court well in advance of the date from which resumption is sought. The Court has to take account of any representations made by the crofter but in applications where all matters are agreed, the Court may authorise resumption without having a hearing.
Before authorising resumption, the Court require to be satisfied not only that the resumption is for a reasonable purpose in terms of Section 20 but also that the purpose for which resumption is sought will actually be carried out. The Court may therefore, in cases where local authority planning permission for a development is required, require evidence that this has been granted.
Accordingly the Court, in order to assist practitioners when framing an application for resumption whether from a croft (Form 6 (Crofter)) or from a common grazings (Form 7 (Crofter)), have issued this practice note.
For the purposes of this note, resumption applications, whether from a croft or from a common grazing, can be divided into three categories:-
- In an application where resumption is being sought of an area of ground with an existing building situated thereon for the purpose of conveying the area of ground to either the crofter Respondent or a third party, the Court will not normally require any evidence of planning permission. However the Court will wish to have evidence that the landlord and the person acquiring the area of ground in question have agreed the terms of a sale. The Court will accept as such evidence, concluded missives (conditional on resumption being granted) or an exchange of letters indicating that a sale has been agreed or indeed a statement in the application to the effect that a sale has been agreed between the landlord and the third party and the price agreed.
- In an application where resumption is sought of a bare land site for sale either to the crofter or to a third party for any purposes involving development under the Planning Acts (including as a site for a dwellinghouse) the Court will require in addition to evidence of an agreed sale as detailed supra at least an indication that outline planning permission has been or will be granted. Normally the Court will expect to have sight of the actual grant of outline planning permission but the Court will be prepared to accept as an alternative a letter from the local authority indicating that planning permission will be granted. In the event of such an application being lodged where no planning permission has been obtained the Court will normally sist the application until such time as evidence of the grant of planning permission can be exhibited to the Court.
- In an application where the landlord seeks to resume ground for the purpose of conveying it to a local authority who are then to carry out work on the ground, whether it be road improvements, new drainage systems or other works the Court will not require any evidence of planning permission but as detailed supra will require evidence that the landlord had agreed to sell the area of ground in question to the local authority. In applications in this category it is common practice for the local authority to agree certain accommodation works with the crofter or crofters in question and these should be detailed either in the application form itself or by reference to appended Schedules. In such applications where accommodation works are to be carried out by the local authority or their contractors, the Court will assume that in all cases the accommodation works, unless otherwise stated, will, after satisfactory construction, become crofters’ improvements and will thereafter be maintainable by them in all time coming. The Court’s Order will normally include an obligation to carry out the accommodation works as set out in the schedule of accommodation works which is lodged along with the application or on the plan produced.
In all the above three categories the Court have indicated that evidence of an agreed sale will be required. Where, however, the crofter or crofters have executed a Minute of Consent either waiving compensation in terms of Section 20 of the Act of 1993 and/or the share in the development value in terms of Section 21 of the Act of 1993, or have agreed to accept a certain stated amount in settlement of any claims under Section 20 and Section 21, it is unnecessary to indicate in the application the consideration agreed between the landlord and the third party.
As was stated in the introduction to this practice note the Court will not authorise resumption retrospectively and it is the Court’s normal practice to authorise resumption forthwith unless asked specifically in the Statement of Facts to authorise resumption at a particular date. However there is one important exception to that practice and that is in applications where the purpose of the resumption is to convey an area of ground to a body possessing compulsory purchase powers — because in terms of Section 56 of the Land Compensation (Scotland) Act 1973 a crofter has a right to opt to claim compensation under the Compulsory Purchase Code instead of the Crofting Act. If a crofter wishes to exercise his right to opt he must do so before surrender of the ground and in order to give him time to consider whether to opt or not the Court had adopted the practice of authorising resumption and ordaining surrender at a date some 4 weeks later than the date of intimation of the Order so as to give the crofter time, at least in theory, to consider whether to opt or not.
The Court have issued the above note for the guidance of practitioners only. Any enquiries regarding this note should be addressed to the Principal Clerk, 1 Grosvenor Crescent, Edinburgh EH12 5ER (DX ED 259) — Telephone 0131 225 3595).
(Revised January 1994)